6.  The applicant was born in 1976 and lives in Schalchen.
7.  The applicant’s son K. was born out of wedlock on 26 May 2000. The child was given the applicant’s family name by decision of the Braunau District Administrative Authority of 29 June 2000.
8.  At that time K.’s mother was living as a tenant in the applicant’s house, in a separate apartment. The applicant was sharing an apartment with his long-term partner, U., who later became his wife, and their son D. aged six at that time. During K.’s first year the applicant took parental leave and took care of him together with U. Subsequently, K.’s mother took parental leave.
9.  In early January 2002 K.’s mother moved out of the applicant’s house.
10.  On 28 January 2002 the applicant asked the Mattighofen District Court (Bezirksgericht) to transfer sole custody of K. to him under Article 176 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch). He submitted in particular that he and U. had mainly taken care of K. and that the child’s mother was not capable of doing so. The latter opposed the transfer of custody. At that stage and at all subsequent stages of the proceedings the applicant was assisted by counsel.
11.  By letter of 12 February 2002 the Youth Office (Jugendamt), which had been following the case since summer 2001, expressed the view that both parents were capable of exercising custody.
12.  On 12 March 2002 the applicant and K.’s mother appeared before the District Court and were heard by the judge.
13.  According to the minutes, the applicant requested that the opinion of an expert in child psychology be taken. K.’s mother agreed to that request. The court appointed Dr J.-W., an expert in child psychology, and ordered him to submit an opinion on whether the interests of the child were better served by leaving sole custody with the mother or by awarding it to the applicant. The judge then proceeded to discuss the factual and legal issues with the parties. The parties then concluded an agreement to the effect that, pending a decision on custody, K. would spend three days with his mother and three days with the applicant.
14.  The expert, Dr J.-W., submitted his opinion to the Court on 17 April 2002. The opinion was based on interviews which the expert had conducted with K.’s mother and the applicant and his partner. He had also paid a visit to the applicant’s home during which he had observed how the applicant and the other members of his family interacted with K. The expert opinion was served on the applicant.
15.  On 8 July 2002 the District Court held a hearing in the presence of the applicant, his counsel, K.’s mother, Dr J.-W. and a representative of the Youth Office.
16.  According to the minutes, the contents of the file were read out. Subsequently, Dr J.-W.’s opinion was discussed. In the course of the hearing Dr J.-W. supplemented his opinion. He expressed the view that K.’s mother was very immature and not yet capable of taking care of him and recommended the transfer of sole custody to the applicant. The representative of the Youth Office opposed the view that K.’s mother was not capable of raising the child. None of the parties made further submissions.
17.  On the following day, that is, on 9 July 2002, the District Court ordered a second expert in child psychology, Dr R., to submit an opinion on whether or not K.’s mother was capable of taking care of him. In her opinion of 15 July 2002, Dr R. came to the conclusion that K.’s mother was sufficiently mature, did not show any emotional instability and was capable of taking care of him. A copy of this expert opinion was served on the applicant.
18.  In addition the District Court requested the Youth Office to prepare a report. A representative of the Youth Office visited K. and his mother at their home and as a result of that visit concluded that she was able to exercise custody.
19.  On 29 July and 13 August 2002 the applicant requested that a decisive expert opinion (Obergutachten) be commissioned. The motion contained comprehensive submissions on K.’s mother’s alleged incapacity to raise him.
20.  The District Court ordered a third expert, Dr B., to submit a decisive expert opinion on the question whether K.’s mother was capable of exercising custody.
21.  Both the applicant and K.’s mother made further written submissions. Each of them forwarded detailed arguments as to why the other parent was not an appropriate person to take care of K.
22.  On 14 October 2002 Dr B. submitted his expert opinion. Having interviewed the applicant and K.’s mother, he found that both parents were in principle capable of taking care of K. The mother had some issues as regards her own personality development and a somewhat limited capacity to cope with everyday life. The applicant had a tendency to dominate and had given reason to fear that, if custody was awarded to him, he would try to curtail the mother’s access rights. The applicant could provide a more stable environment and a more coherent style of upbringing. However, K.’s best interests would not be manifestly endangered if custody remained with his mother. It was recommended that the applicant be given extensive access rights, in that K. should stay with him from Friday to Sunday every second weekend, spend two weeks with him in summer and one week during the Christmas period.
23.  A copy of Dr B.’s expert opinion was served on the applicant, and he was given 14 days to submit comments. Within that time-limit, the applicant requested that the expert opinion be discussed at a hearing. He did not make any comments in writing.
24.  Without holding a further hearing, the District Court dismissed the applicant’s request for sole custody of K. to be transferred to him by decision of 4 December 2002.
25.  The District Court noted that under Article 166 of the Civil Code the mother of a child born out of wedlock had sole custody. A transfer of custody was only to be ordered if the child’s best interests were at risk. In the present case the applicant would have had to prove that K.’s mother was unable to take care of him. While the first expert, Mr J.-W., had come to the conclusion that this was the case, the second expert, Ms R., had reached the opposite conclusion. Finally, the decisive expert opinion by Mr B. had found it established that K.’s mother was capable of taking care of him. Having regard to the second and third expert opinions and to the view expressed by the Youth Office, it had been established that K.’s mother was able to exercise custody and the applicant had failed to adduce proof to the contrary.
26.  Furthermore, the District Court noted that it had not considered it necessary to hold a hearing to discuss the decisive expert opinion, since it found that opinion coherent and convincing. The factual and legal issues of the case had therefore been sufficiently clarified and a hearing would only have delayed the proceedings. It followed that the applicant’s further requests for the taking of evidence had to be dismissed.
27.  Finally, the court ruled that its decision was immediately enforceable with the consequence that the agreement of 12 March 2002 was no longer effective.
28.  The applicant appealed. He complained about a number of procedural shortcomings. He alleged, inter alia, that the District Court had failed to hold a hearing for the purpose of discussing Dr B.’s expert opinion, and that it had not heard him in person.
29.  In addition, the applicant contended that the relevant provisions of the Civil Code, namely, Articles 166 and 176, were discriminatory and suggested that the appellate court request the Constitutional Court to rule on their constitutionality. Since K. had been born out of wedlock, his mother had sole custody of him and he, as the child’s father, could only be awarded custody if the mother put the child’s well-being at risk. In the case of a child born in wedlock the parents had joint custody and retained it upon divorce or separation unless the child’s best interests required that sole custody be awarded to one of them. The application of different criteria when the parents of a child born out of wedlock separated lacked reasonable justification.
30.  On 24 February 2003 the Ried Regional Court dismissed the applicant’s appeal.
31.  The Regional Court found that the proceedings before the District Court had not suffered from any procedural defects. In non-contentious proceedings it was not always required to question the parties at a hearing. A hearing had been held on 8 July 2002 in the presence of the applicant. Furthermore, the applicant had had the opportunity to file written submissions, of which he had made ample use. He had also been interviewed by the experts. A further hearing for the purpose of discussing the decisive expert opinion of Dr B. would only have been required had there been substantial doubts as to its correctness.
32.  Moreover, the Regional Court did not see any reason to request the Constitutional Court to rule on the constitutionality of the relevant provisions of the Civil Code. It noted that Article 167 of the Civil Code allowed life-companions to request joint custody. The applicant had not claimed to have cohabited with K.’s mother. On the contrary he had co‑habited with another woman, U., who had meanwhile become his wife.
33.  A distinction between children born in wedlock and children born out of wedlock was not discriminatory as long as it was objectively justified. The rule contained in Article 176 of the Civil Code that in the case of a child born out of wedlock (unless the parents had requested joint custody under Article 167) custody was only to be transferred if the mother put the child’s well-being at risk, was based on the consideration that in the majority of cases of children born out of wedlock it was actually the mother who took care of the child.
34.  The applicant filed an extraordinary appeal on points of law. He repeated his complaints about the alleged procedural shortcomings. In particular, he submitted that the court had neither held a hearing to discuss the decisive expert opinion of Dr B. nor given him an opportunity to comment in writing. The applicant also reiterated his request for the case to be submitted to the Constitutional Court.
35.  On 26 June 2003 the Supreme Court (Oberster Gerichtshof) dismissed the applicant’s extraordinary appeal on points of law. It noted that the courts were not obliged to hold hearings in custody proceedings. The applicant had been given the opportunity to comment on the expert opinion at issue. Moreover, the courts had correctly applied Article 176 of the Civil Code. It had not been shown that the mother put K.’s well-being at risk.
36.  To date, K.’s mother continues to have sole custody of him while the applicant has a right of access under the terms recommended by the courts in the custody proceedings.